II

If we are dissatisfied with custom and habit and seek to take philosophy

for the guide of life we have two possibilities: (1) we may look for the

good, and treat right and duty as subordinate concepts which indicate

the way to the good, that is, consider them as good as a means, or (2)

we may seek first to do right irrespective of consequences, in the

belief that in willing to do right we are already in possession of the

highest good. In either case we may consider our standards and values

either as in some sense fixed or as in the making.[68] We may suppose

that good is objective and absolute, that right is discovered by a

rational faculty, or we may consider that in regarding good as objective

we have not made it independent of the valuing process and that in

treating right as a standard we have not thereby made it a fixed concept

to be discovered by the pure intellect. The position of this paper will

be (1) that good while objective is yet objective as a value and not as

an essence or physical fact; (2) that a social factor in value throws

light upon the relation between moral and other values; (3) that right

is not merely a means to the good but has an independent place in the

moral consciousness; (4) that right while signifying order does not

necessarily involve a timeless, eternal order since it refers to an

order of personal relations; (5) that the conception of right instead of

being a matter for pure reason or even the "cognitive faculty" shows an

intimate blending of the emotional and intellectual and that this

appears particularly in the conception of the reasonable.

(1) We begin with the question of the synthetic and objective character

of the good. With G. E. Moore as with the utilitarians the good is the

ultimate concept. Right and duty are means to the good. Moore and

Rashdall also follow Sidgwick in regarding good as unique, that is, as

"synthetic." Sidgwick emphasized in this especially the point that moral

value cannot be decided by physical existence or the course of

evolution, nor can the good be regarded as meaning the pleasant. Moore

and Russell reinforce this. However true it may be that pleasure is one

among other good things or that life is one among other good things,

good does not mean either pleasure or survival. Good means just "good."

A similar thought underlies Croce's division of the Practical into the

two spheres of the Economic and the Ethical. "The economic activity is

that which wills and effects only what corresponds to the conditions of

fact in which a man finds himself; the ethical activity is that which,

although it correspond to these conditions, also refers to something

that transcends them. To the first correspond what are called

individual ends, to the second universal ends; the one gives rise to the

judgment concerning the greater or less coherence of the action taken in

itself, the other to that concerning its greater or less coherence in

respect to the universal end, which transcends the individual.[69]

Utilitarianism is according to Croce an attempt to reduce the Ethical to

the Economic form, although the utilitarians as men attempt in various

ways to make a place for that distinction which as philosophers they

would suppress. "Man is not a consumer of pleasures. He is a creator of

life." With this claim of the distinctive, synthetic, character of the

moral consciousness and of the impossibility of testing the worth of

ideals by cosmic laws, or by gratification of particular wants as

measured by pleasure, I have no issue. The analysis of the moral

judgment made above points out just how it is that good is synthetic. It

is synthetic in that it represents a measuring and valuing of

ends--instinctive and imagined, individual and social--against each

other and as part of a whole to which a growing self corresponds. It is

synthetic in that it represents not merely a process of evaluating ends

which match actually defined desires, but also a process in which the

growing self, dissatisfied with any ends already in view, gropes for

some new definition of ends that shall better respond to its living,

creative capacity, its active synthetic character. Good is the concept

for just this valuing process as carried on by a conscious being that is

not content to take its desire as ready made by its present

construction, but is reaching out for ends that shall respond to a

growing, expanding, inclusive, social, self. It expresses value _as_

value.

Value _as value!_ not as being; nor as independent essence; nor as

anything static and fixed. For a synthetic self, a living personality,

could find no supreme value in the complete absence of valuing, in the

cessation of life, in the negation of that very activity of projection,

adventure, construction, and synthesis in which it has struck out the

concept good. A theory of ethics which upholds the synthetic character

of the good may be criticized as being not synthetic enough if it fails

to see that on the basis of the mutual determination of percepts and

concepts, of self and objects, the synthetic character of the process

must be reflected in the ultimate meaning of the category which

symbolizes and incorporates the process.

(2) We may find some light upon the question how moral value gets its

distinctive and unique character, and how it comes to be more

"objective" than economic value if we consider some of the social

factors in the moral judgment. For although the concept good is rooted

in the life process with its selective activity and attending emotions

it involves a subtle social element, as well as the more commonly

recognized factors of intelligence.

Within the fundamental selective process two types of behavior tend to

differentiate in response to two general sorts of stimulation. One sort

is simpler, more monotonous, more easily analyzable. Response to such

stimulation, or treatment of objects which may be described under these

terms of simple, analyzable, etc., is easily organized into a habit. It

calls for no great shifts in attention, no sudden readjustments. There

is nothing mysterious about it. As satisfying various wants it has a

certain kind of value. It, however, evokes no consciousness of self.

Toward the more variable, complex sort of stimuli, greater attention,

constant adjustment and readjustment, are necessary.

Objects of the first sort are treated as things, in the sense that they

do not call out any respect from us or have any intrinsic value. We

understand them through and through, manipulate them, consume them,

throw them away. We regard them as valuable only with reference to our

wants. On the other hand, objects of the second sort take their place in

a bi-focal situation. Our attention shifts alternately to their behavior

and to our response, or, conversely, from our act to their response.

This back and forth movement of attention in the case of certain of

these objects is reinforced by the fact that certain stimuli from them

or from the organism, find peculiar responses already prepared in social

instincts; gesture and language play their part. Such a bi-focal

situation as this, when completely developed, involves persons. In its

earlier stages it is the quasi-personal attitude which is found in

certain savage religious attitudes, in certain aesthetic attitudes, and

in the emotional attitudes which we all have toward many of the objects

of daily life.

Economic values arise in connection with attitudes toward things. We buy

things, we sell them. They have value just in that they gratify our

wants, but they do not compel any revision or change in wants or in the

self which wants. They represent a partial interest--or if they become

the total interest we regard them as now in the moral sphere. Values of

personal affection arise as we find a constant rapport in thought,

feeling, purpose, between the two members of our social consciousness.

The attitude is that of going along with another and thereby extending

and enriching our experiences. We enter into his ideas, range with his

imagination, kindle at his enthusiasms, sympathize with his joys or

sorrows. We may disagree with our friend's opinions, but we do not

maintain a critical attitude toward _him_, that is, toward his

fundamental convictions and attitudes. If "home is the place where, when

you have to go there, they have to take you in," as Frost puts it, a

friend is one who, when you go to him, has to accept you.

Moral values also arise in a social or personal relation--not in

relation to things. This is on the surface in the form of judgment; "He

is a good man," "That is a good act." If it is less obvious in the

practical judgment, "This is the better course of action," i.e., the

course which leads to the greater good, or to the good, this is because

we fail to discern that the good in these cases is a something with

which I can identify myself, not a something which I merely possess and

keep separate from my personality. It is something I shall be rather

than have. Or if I speak of a share or participation it is a sharing in

the sense of entering into a kindred life. It is an ideal, and an ideal

for a conscious personal being can hardly be other than conscious. It

may be objected that however personal the ideal it is not on this

account necessarily social. It embodies what I would be, but does not

necessarily imply response to any other personality. This, however,

would be to overlook the analyses which recent psychology has made of

the personal. The ideal does not develop in a vacuum. It implies for one

thing individuality which is conceivable only as other individuals are

distinguished. It implies the definition of purposes, and such

definition is scarcely if ever attempted except as a possible world of

purposes is envisaged.

AEsthetic valuation is in certain respects intermediate between the

valuation of things on the one hand and the moral evaluation of acts of

persons or conscious states on the other. AEsthetic objects are in many

cases seemingly things and yet even as things they are quasi-personal;

they are viewed with a certain sympathy quite different from that which

we feel for a purely economic object. If it is a work of art the artist

has embodied his thought and feeling and the observer finds it there.

The experience is that of _Einfuehlung_. Yet we do not expect the kind of

response which we look for in friendship, nor do we take the object as

merely a factor for the guidance or control of our own action as in the

practical judgment of morality. The aesthetic becomes the object of

contemplation, not of response; of embodied meaning, not of

individuality. It is so far personal that no one of aesthetic sensibility

likes to see a thing of beauty destroyed or mistreated. The situation

in which we recognize in an object meaning and embodied feeling, or at

least find sources of stimulation which appeal to our emotions, develops

an aesthetic enhancement of conscious experience. The aesthetic value

predicate is the outcome of this peculiar enhancement.

It seems that the social nature of the judgment plays a part also in the

varying objectivity of values. It is undoubtedly true that some values

are treated as belonging to objects. If we cannot explain this fully we

may get some light upon the situation by noticing the degree to which

this is true in the cases of the kinds of values already described.

Economic values are dubiously objective. We use both forms of

expression. We say on the one hand, "I want wheat," "There is a demand

for wheat," or, on the other, "Wheat is worth one dollar a bushel."

Conversely, "There is no demand for the old-fashioned high-framed

bicycle" or "It is worthless." The Middle Ages regarded economic value

as completely objective. A thing had a _real value_. The retailer could

not add to it. The mediaeval economist believed in the externality of

relations; he prosecuted for the offenses of forestalling and regrating

the man who would make a profit by merely changing things in place. He

condemned usury. We have definitely abandoned this theory. We recognize

that it is the want which makes the value. To make exchange possible and

socialize to some degree the scale of prices we depend upon a public

market or a stock exchange.

In values of personal affection we may begin with a purely individual

attitude, "I love or esteem my friend." If I put it more objectively I

may say, "He is an honored and valued friend." Perhaps still more

objectively, we--especially if we are feminine--may say "Is not X dear?"

We may then go on to seek a social standard. We perhaps look for

reinforcement in a small group of like-minded. We are a little perplexed

and, it may be, aggrieved if other members of the circle do not love the

one whom we love. In such a group judgment of a common friend there is

doubtless greater objectivity than in the economic judgment. The value

of a friend does not depend upon his adjustment to our wants. As

Aristotle pointed out, true friendship is for its own sake. Its value is

"disinterested." If a man does not care for an economic good it does not

reflect upon him. He may be careless of futures, neglectful of corn,

indifferent to steel. It lessens the demand, lowers the values of these

goods, an infinitesimal, but does not write him down an inferior person.

To fail to prize a possible friend is a reflection upon us. However the

fact that in the very nature of the case one can scarcely be a personal

friend to a large, not to say a universal group, operates to limit the

objectivity.

In the aesthetic and moral attitudes we incorporate value in the object

decisively. We do not like to think that beauty can be changed with

shifting fashions or to affirm that the firmament was ever anything but

sublime. It seems to belong to the very essence of right that it is

something to which the self can commit itself in absolute loyalty and

finality. And, as for good, we may say with Moore in judgments of

intrinsic value, at least, "we judge concerning a particular state of

things that it would be worth while--would be a good thing--that that

state of things should exist, even if nothing else were to exist

besides."

With regard to this problem of objectivity it is significant in the

first place that the kind of situation out of which this object value is

affirmed in aesthetic and moral judgments is a social situation. It

contrasts in this respect with the economic situation. The economic is

indeed social in so far as it sets exchange values, but the object

valued is not a social object. The aesthetic and moral object is such an

object. Not only is there no contradiction in giving to the symbolic

form or the moral act intrinsic value: there is entire plausibility in

doing so. For in so far as the situation is really personal, _either

member is fundamentally equal to the other and may be treated as

embodying all the value of the situation_. The value which rises to

consciousness in the situation is made more complete by eliminating from

consideration the originating factors, the plural agents of admiration

or approval, and incorporating the whole product abstractly in the

object. In thus calling attention to the social or personal character of

the aesthetic or moral object it is not intended to minimize that factor

in the judgment which we properly speak of as the universalizing

activity of thought, much less to overlook the importance of the

judgmental process itself. The intention is to point out some of the

reasons why in one case the thinking process does universalize while in

the other it does not, why in one case the judgment is completely

objective while in the other it is not. In both aesthetic and moral

judgments social art, social action, social judgments, through

collective decisions prepare the way for the general non-personal,

objective form. It is probable that man would not say, "This is right,"

using the word as an adjective, if he had not first said, as member of a

judicially acting group, "This is right," using the word as a noun. And

finally whatever we may claim as to the "cognitive" nature of the

aesthetic and moral judgment, the only test for the beauty of an object

is that persons of taste discover it. The only test for the rightness of

an act is that persons of good character approve it. The only test for

goodness is that good persons on reflection approve and choose it--just

as the test for good persons is that they choose and do the good.

(3) Right is not merely a means to good but has a place of its own in

the moral consciousness. Many of our moral choices or judgments do not

take the form of choice between right and wrong, or between duty and its

opposite; they appear to be choices between goods. That is, we do not

always consider our value as crystallized into a present standard or

feel a tension between a resisting and an authoritative self. But when

they do emerge they signify a distinct factor. What Moore says of good

may be said also of right. Right means just "right," nothing else. That

is, we mean that acts so characterized correspond exactly to a self in a

peculiar attitude, viz., one of adequate standardizing and adjustment,

of equilibrium, in view of all relations. The concept signifies that in

finding our way into a moral world into which we are born in the process

of valuing and judging, we take along the imagery of social judgment in

which through language and behavior the individual is constantly

adjusting himself, not only to the social institutions, and group

organization but far more subtly and unconsciously to the social

consciousness and attitudes.

This conception of an order to which the act must refer has usually been

regarded as peculiarly a "rational" factor. It is, however, rather an

order of social elements, of a nature of persons, than of a "nature of

things." In savage life the position of father, wife, child, guest, or

other members of the household, is one of the most prominent facts of

the situation. The relationship of various totem groups and

inter-marrying groups is the very focus of moral consciousness. Even in

the case of such a cosmic conception of order as Dike and Themis, Rita

and Tao, the "Way" is not impersonal cosmos. It is at least

quasi-personal. And if we say such primitive myth has no bearing on what

the "nature" of right or the "true" meaning of right is, it is pertinent

to repeat that concepts without percepts are empty; that the term means

nothing except the conceptual interpretation of a unique synthetic

process in which an act placed in relation to a standard is thereby

given new meaning. So long as custom or law forms the only or the

dominant factor in the process, we have little development of the ideal

concept right as distinct from a factual standard. But when reason and

intelligence enter, particularly when that creative activity of

intelligence enters which attempts a new construction of ends, a new

ordering of possible experience, then the standardizing process is set

free; a new self with new possibilities of relation seeks expression.

The concept "right" reflects the standardizing, valuing process of a

synthetic order and a synthetic self. Duty born similarly in the world

of social relations and reflecting especially the tension between the

individual and the larger whole is likewise given full moral

significance when it becomes a tension within the synthetic self. And as

thus reflecting the immediate attitudes of the self to an ideal social

order both right and duty are not to be treated merely as means to any

value which does not include as integrant factors just what these

signify.

This view is contrary to that of Moore, for whom "right does and can

mean nothing but 'cause of a good result,' and is thus identical with

useful."[70] The right act is that which has the best consequences.[71]

Similarly duty is that action which will cause more good to exist in the

Universe than any possible alternative. It is evident that this makes it

impossible for any finite mind to assert confidently that any act is

right or a duty. "Accordingly it follows that we never have any reason

to suppose that an action is our duty: we can never be sure that any

action will produce the greatest value possible.[72]

Whatever the convenience of such a definition of right and duty for a

simplified ethics it can hardly be claimed to accord with the moral

consciousness, for men have notoriously supposed certain acts to be

duty. To say that a parent has no reason to suppose that it is his duty

to care for his child is more than paradox. And a still greater

contradiction to the morality of common sense inheres in the doctrine

that the right act is that which has the best consequences. Considering

all the good to literature and free inquiry which has resulted from the

condemnation of Socrates it is highly probable--or at least it is

arguable--that the condemnation had better results than an acquittal

would have yielded. But it would be contrary to our ordinary use of

language to maintain that this made the act right. Or to take a more

recent case: the present war may conceivably lead to a more permanent

peace. The "severities," practised by one party, may stir the other to

greater indignation and lead ultimately to triumph of the latter. Will

the acts in question be termed right by the second party if they

actually have this effect? On this hypothesis the more outrageous an act

and the greater the reaction against it, the better the consequences are

likely to be and hence the more reason to call the act right and a duty.

The paradox results from omitting from right the elements of the

immediate situation and considering only consequences. The very meaning

of the concept right, implies focussing attention upon the present

rather than upon the future. It suggests a cross-section of life in its

relations. If the time process were to be arrested immediately after our

act I think we might still speak of it as right or wrong. In trying to

judge a proposed act we doubtless try to discover what it will mean,

that is, we look at consequences. But these consequences are looked upon

as giving us the meaning of the present act and we do not on this

account subordinate the present act to these consequences. Especially we

do not mean to eliminate the significance of this very process of

judgment. It is significant that in considering what are the intrinsic

goods Moore enumerates personal affection and the appreciation of

beauty, and with less positiveness, true belief, but does not include

any mention of the valuing or choosing or creative consciousness.

(4) If we regard right as the concept which reflects the judgment of

standardizing our acts by some ideal order, questions arise as to the

objectivity of this order and the fixed or moving character of the

implied standard. Rashdall lays great stress upon the importance of

objectivity: "Assuredly there is no scientific problem upon which so

much depends as upon the answer we give to the question whether the

distinction which we are accustomed to draw between right and wrong

belongs to the region of objective truth like the laws of mathematics

and of physical science, or whether it is based upon an actual emotional

constitution of individual human beings."[73] The appraisement of the

various desires and impulses by myself and other men is "a piece of

insight into the true nature of things."[74] While these statements are

primarily intended to oppose the moral sense view of the judgment, they

also bear upon the question whether right is something fixed. The

phrase "insight into the true nature of things" suggests at once the

view that the nature of things is quite independent of any attitude of

human beings toward it. It is something which the seeker for moral truth

may discover but nothing which he can in any way modify. It is urged

that if we are to have any science of ethics at all what was once right

must be conceived as always right in the same circumstances.[75]

I hold no brief for the position--if any one holds the position--that in

saying "this is right" I am making an assertion about my own feelings or

those of any one else. As already stated the function of the judging

process is to determine objects, with reference to which we say "is" or

"is not." The emotional theory of the moral consciousness does not give

adequate recognition to this. But just as little as the process of the

moral consciousness is satisfied by an emotional theory of the judgment

does it sanction any conception of objectivity which requires that

values are here or there once for all; that they are fixed entities or

"a nature of things" upon which the moral consciousness may look for its

information but upon which it exercises no influence. The process of

attempting to give--or discover--moral values is a process of mutual

determination of object and agent. We have to do in morals not with a

nature of things but with natures of persons. The very characteristic of

a person as we have understood it is that he is synthetic, is actually

creating something new by organizing experiences and purposes, by

judging and choosing. Objectivity does not necessarily imply

changelessness.

Whether right is a term of fixed and changeless character depends upon

whether the agents are fixed units, either in fact or in ideal. If, as

we maintain, right is the correlate of a self confronting a world of

other persons conceived as all related in an order, the vital question

is whether this order is a fixed or a moving order. "Straight" is a term

of fixed content just because we conceive space in timeless terms; it is

by its very meaning a cross-section of a static order. But a world of

living intelligent agents in social relations is in its very

presuppositions a world of activity, of mutual understanding and

adjustment. Rationalistic theory, led astray by geometrical conceptions,

conceived that a universal criterion must be like a straight line, a

fixed and timeless--or eternal--entity. But in such an order of fixed

units there could be no selection, no adjustment to other changing

agents, no adventure upon the new untested possibility which marks the

advance of every great moral idea, in a word, no morality of the

positive and constructive sort. And if it be objected that the predicate

of a judgment must be timeless whatever the subject, that the word "is"

as Plato insists cannot be used if all flows, we reply that if right=the

correlate of a moving order, of living social intelligent beings, it is

quite possible to affirm "This is according to that law." If our logic

provides no form of judgment for the analysis of such a situation it is

inadequate for the facts which it would interpret. But in truth

mankind's moral judgments have never committed themselves to any such

implication. We recognize the futility of attempting to answer simply

any such questions as whether the Israelites did right to conquer Canaan

or Hamlet to avenge his father.

(5) The category of right has usually been closely connected, if not

identified, with reason or "cognitive" activity as contrasted with

emotion. Professor Dewey on the contrary has pointed out clearly[76] the

impossibility of separating emotion and thought. "To put ourselves in

the place of another ... is the surest way to attain universality and

objectivity of moral knowledge." "The only truly general, the reasonable

as distinct from the merely shrewd or clever thought, is the _generous_

thought." But in the case of certain judgments such as those approving

fairness and the general good Sidgwick finds a rational intuition. "The

principle of impartiality is obtained by considering the similarity of

the individuals that make up a Logical Whole or Genus."[77] Rashdall

challenges any but a rationalistic ethics to explain fairness as

contrasted with partiality of affection.

There is without question a properly rational or intellectual element in

the judgment of impartiality, namely, analysis of the situation and

comparison of the units. But what we shall set up as our units--whether

we shall treat the gentile or the barbarian or negro as a person, as end

and not merely means, or not, depends on something quite other than

reason. And this other factor is not covered by the term "practical

reason." In fact no ethical principle shows better the subtle blending

of the emotional and social factors with the rational. For the student

of the history of justice is aware that only an extraordinarily

ingenious exegesis could regard justice as having ever been governed by

a mathematical logic. The logic of justice has been the logic of a

we-group gradually expanding its area. Or it has been the logic of a

Magna Charta--a document of special privileges wrested from a superior

by a strong group, and gradually widening its benefits with the

admission of others into the favored class. Or it has been the logic of

class, in which those of the same level are treated alike but those of

different levels of birth or wealth are treated proportionately. Yet it

would seem far-fetched to maintain that the countrymen of Euclid and

Aristotle were deficient in the ability to perform so simple a reasoning

process as the judgment one equals one, or that men who developed the

Roman Law, or built the cathedrals of the Middle Ages, were similarly

lacking in elementary analysis. Inequality rather than equality has been

the rule in the world's justice. It has not only been the practice but

the approved principle. It still is in regard to great areas of life. In

the United States there is no general disapproval of the great

inequalities in opportunity for children, to say nothing of inequalities

in distribution of wealth. In England higher education is for the

classes rather than for the masses. In Prussia the inequality in voting

strength of different groups and the practical immunity of the military

class from the constraints of civil law seem to an American unfair. The

western states of the Union think it unfair to restrict the suffrage to

males and give women no voice in the determination of matters of such

vital interest to them as the law of divorce, the guardianship of

children, the regulation of women's labor, the sale of alcoholic

liquors, the protection of milk and food supply. Are all these

differences of practice and conviction due to the fact that some people

use reason while others do not? Of course in every case excellent

reasons can be given for the inequality. The gentile should not be

treated as a Jew because he is not a Jew. The slave should not be

treated as a free citizen because he is not a free citizen. The churl

should not have the same wergeld as the thane because he is lowborn. The

more able should possess more goods. The woman should not vote because

she is not a man. The reasoning is clear and unimpeachable if you accept

the premises, but what gives the premises? In every case cited the

premise is determined largely if not exclusively by social or emotional

factors. If reason can then prescribe equally well that the slave should

be given rights because he is a man of similar traits or denied rights

because he has different traits from his master, if the Jew may either

be given his place of equality because he hath eyes, hands, organs,

dimensions, senses, affections, passions, or denied equality because he

differs in descent, if a woman is equal as regards taxpaying but unequal

as regards voting, it is at least evident that reason is no unambiguous

source of morality. The devil can quote Scripture and it is a very poor

reasoner who cannot find a reason for anything that he wishes to do. A

partiality that is more or less consistently partial to certain sets or

classes is perhaps as near impartiality as man has yet come, whether by

a rational faculty or any other.

Is it, then, the intent of this argument merely to reiterate that reason

is and ought to be the slave of the passions? On the contrary, the

intent is to substitute for such blanket words as reason and passions a

more adequate analysis. And what difference will this make? As regards

the particular point in controversy it will make this difference: the

rationalist having smuggled in under the cover of reason the whole moral

consciousness then proceeds to assume that because two and two are

always four, or the relations of a straight line are timeless, therefore

ethics is similarly a matter of fixed standards and timeless goods. A

legal friend told me that he once spent a year trying to decide whether

a corporation was or was not a person and then concluded that the

question was immaterial. But when the supreme court decided that a

corporation was a person in the meaning of the Fourteenth Amendment it

thereby made the corporation heir to the rights established primarily

for the negro. Can the moral consciousness by taking the name "reason"

become heir to all the privileges of the absolute idea and to the

timelessness of space and number?

Suppose I am to divide an apple between my two children--two children,

two pieces--this is an analysis of the situation which is obvious and

may well be called the analytic activity of reason. But shall I give to

each an equal share on the ground that both are equally my children or

shall I reason that as John is older or larger or hungrier or mentally

keener or more generous or is a male, he shall have a larger piece than

Jane? To settle this it may be said that we ought to see whether there

is any connection between the size of the piece and the particular

quality of John which is considered, or that by a somewhat different use

of reason we should look at the whole situation and see how we shall

best promote family harmony and mutual affection. To settle the first of

these problems, that of the connection between the size of the piece and

the size of the hunger or the sex of the child, is seemingly again a

question of analysis, of finding identical units, but a moment's thought

shows that the case is not so simple; that the larger child should have

the larger piece is by no means self-evident. This is in principle

doubtless the logic, to him that hath shall be given. It is the logic of

the survival of the strong, but over against that the moral

consciousness has always set another logic which says that the smaller

child should have the larger piece if thereby intelligent sympathy can

contribute toward evening up the lot of the smaller. Now it is precisely

this attitude of the moral consciousness which is not suggested by the

term reason, for it is quite different from the analytic and identifying

activity. This analytical and identifying activity may very well rule

out of court the hypothesis that I should give John the larger piece

because he has already eaten too much or because he has just found a

penny or because he has red hair; it has undoubtedly helped in

abolishing such practices as that of testing innocence by the ordeal.

But before the crucial question of justice which divides modern society,

namely, whether we shall lay emphasis upon adjustment of rewards to

previous abilities, habits, possessions, character, or shall lay stress

upon needs, and the possibility of bringing about a greater measure of

equality, the doctrine which would find its standard in an _a priori_

reason is helpless.

If we look at the second test suggested, namely, that of considering the

situation as a whole with a view to the harmony of the children and the

mutual affection within the family, there can be even less question that

this is no mere logical problem of the individuals in a logical genus.

It is the social problem of individuals who have feelings and emotions

as well as thought and will. The problem of distributing the apple

fairly is then a complex in which at least the following processes

enter. (1) Analysis of the situation to show all the relevant factors

with the full bearing of each; (2) putting yourself in the place of each

one to be considered and experiencing to the full the claims, the

difficulties and the purposes of each person involved; (3) considering

all of these _as_ members of the situation so that no individual is

given rights or allowed claims except in so far as he represents a point

of view which is comprehensive and sympathetic. This I take it is the

force of President Wilson's utterance which has commanded such wide

acceptance: "America asks nothing for herself except what she has a

right to ask in the name of humanity." Kant aimed to express a high and

democratic ideal of justice in his doctrine that we should treat every

rational being as end. The defect in his statement is that the rational

process as such has never treated and so far as can be foreseen never

will treat _human_ beings as ends. To treat a human being as an end it

is necessary to put oneself into his place in his whole nature and not

simply in his universalizing, and legislative aspects: Kant's principle

is profound and noble, but his label for it is misleading and leaves a

door open for appalling disregard of other people's feelings,

sympathies, and moral sentiments, as Professor Dewey has indicated in

his recent lectures on "German Philosophy and Politics."

The term "reasonable," which is frequently used in law and common life

as a criterion of right, seems to imply that reason is a standard. As

already stated, common life understands by the reasonable man one who

not only uses his own thinking powers but is willing to listen to reason

as presented by some one else. He makes allowance for frailties in human

nature. To be reasonable means, very nearly, taking into account all

factors of the case not only as I see them but as men of varying

capacities and interests regard them. The type of the "unreasonable"

employer is the man who refuses to talk over things with the laborers;

to put himself in their place; or to look at matters from the point of

view of society as a whole.

Just as little does the term reasonable as used in law permit a purely

intellectualistic view of the process or an _a priori_ standard. The

question as to what is reasonable care or a reasonable price is often

declared to be a matter not for the court but for the jury to decide,

i.e., it is not to be deduced from any settled principle but is a

question of what the average thoughtful man, who considers other people

as well as himself, would do under the circumstances. A glance at some

of the judicial definitions of such phrases as "reasonable care,"

"reasonable doubt," "reasonable law," as brought together in _Words and

Phrases Judicially Defined_, illustrates this view. We get a picture not

of any definite standard but of such a process as we have described in

our analysis, namely, a process into which the existing social

tradition, the mutual adjustments of a changing society and the

intelligent consideration of all facts, enter. The courts have variously

defined the reasonable (1) as the customary, or ordinary, or legal, or

(2) as according with the existing state of knowledge in some special

field, or (3) as proceeding on due consideration of all the facts, or

(4) as offering sufficient basis for action. For example, (1) reasonable

care means "according to the usages, habits, and ordinary risks of the

business," (2) "surgeons should keep up with the latest advances in

medical science," (3) a reasonable price "is such a price as the jury

would under all the circumstances decide to be reasonable." "If, after

an impartial comparison and consideration the jury can say candidly they

are not satisfied with the defendant's guilt they have a reasonable

doubt." Under (4) falls one of various definitions of "beyond reasonable

doubt." "The evidence must be such as to produce in the minds of prudent

men such certainty that they would act without hesitation in their own

most important affairs." There is evidently ground for the statement of

one judge that "reasonable" (he was speaking the phrase "reasonable

care," but his words would seem to apply to other cases) "cannot be

measured by any fixed or inflexible standard." Professor Freund

characterizes "reasonable" as "the negation of precision." In the

development of judicial interpretation as applied to the Sherman Law the

tendency is to hold that the "rule of reason" will regard as forbidden

by the statute (_a_) such combinations as have historically been

prohibited and (_b_) such as seem to work some definite injury.

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